Two Supreme Court decisions this week have struck crippling blows at affirmative action. Both overturn, or gut, earlier high court rulings, apply stricter standards for judicial actions and, in the words of Justice Sandra Day O’Connor, alter “the playing field in some important respects.”
The court decided both cases by a 5-4 majority. Both rulings are legally complicated and open the way for future litigation. Nothing in the high court’s new rulings is going to make the ethical, political, economic and legal conflict over this complex issue go away.
Affirmation action has been under increasing assault in recent months. In part, politicians are reading white guys’ anger into the 1994 Republican victories. In part, it’s confusion about how much minority set-asides and preferences have really accomplished, although success stories are numerous and gratifying.
It’s also difficult to agree about who owes what to whom because of perceived past and present injustices. (The Small Business Administration recently ruled that a white, middle-class builder qualifies for affirmative- action set-asides because in Washington, D.C., at least, he is “socially and economically disadvantaged” by his race.)
And it’s the feeling crystallizing across the nation that blatant racial bias is still wrong, however well-meant, especially when ordered by the government.
The two cases on which the Supreme Court ruled this week involve race and ethnicity. But the principles and legal precedents the justices cited will also affect how the nation thinks about and deals with discrimination based on gender, religion, national origin and disability.
In the case of Adarand Constructors vs. Pena, a white-owned Colorado construction company was the low bidder on a subcontract to build a highway guard-rail. But Adarand lost out because the prime contractor got a $10,000 federal bonus for using a Hispanic-owned company as a subcontractor.
The high court ruled that unless there is a “compelling government interest,” federal programs using such strategies as set-asides, bonuses and other incentives based on race are unconstitutional. It sent the case back to district court to be tried under the new, stricter standards.
Even though affirmative-action programs can still be constitutional, the new ruling opens the way for other cases to challenge set-asides and other preferential treatment based on race–and presumably on other categories of disadvantage and discrimination.
The second case, Missouri vs. Jenkins, concerns the unusual efforts by lower federal courts to encourage desegregation in the Kansas City, Mo., schools by requiring the state to spend lavishly on city magnet schools in hopes of attracting white students from the suburbs. So far, plan has cost about $1.5 billion.
But the high court said the Missouri efforts are actually an unconstitutional “interdistrict” remedy. It also said a standard lower courts used to require continued spending–that students still failed to meet national norms on standardized tests–was “not the appropriate test to be applied.”
That case, too, goes back to lower courts for new rulings based on the Supreme Court’s ruling.
It could take years for lower courts to sort out all the cases that could be affected by this week’s Supreme Court rulings–and others dealing with affirmative action that are still on the high court’s docket.
Politics and public opinion aren’t waiting, however. Republicans in Congress are seriously considering how to dismantle some of the affirmative-action programs that divide the nation into groups competing for the special privileges of victimhood. President Clinton is looking for political advantage in his administration’s current review of such policies.
In California, a key political state for presidential candidates, Gov. Pete Wilson has used an executive order to end affirmative-action preferences for state employees. Californians are expected to vote next year on an initiative that would ban “using race, sex, color, ethnicity or national origin as a criterion for either discriminating against, or granting preferential treatment to, any individual or group in the operation of the state’s system of public employment, public education or public contracting.”
There is danger, of course, that in gutting or killing affirmative action, the nation will lose the undeniable benefits it has brought to some individuals and groups. The real issue is whether the cost of these achievements is too high–in discrimination against others, in forcing the nation into competing groups of victims, in a weakening of the role of individual merit, in unequal protection under the law and in the implied stigma of inferiority.
